Li v. A.Z.N. Realty LLC

• Decision Date: 21 March 2019
• Docket Number: Index No. 160401/2015
• Citation: 2019 NY Slip Op 30936 (U)
• Parties: YONG JUN LI, Plaintiff v. A.Z.N. REALTY LLC, Defendant
• Court: New York Supreme Court

2019 NY Slip Op 30936(U)

YONG JUN LI, Plaintiff
v.
A.Z.N. REALTY LLC, Defendant

Index No. 160401/2015

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: April 8, 2019
March 21, 2019

NYSCEF DOC. NO. 79

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

Defendant moves to vacate the note of issue served by plaintiff December 3, 2018, and to compel his authorizations for further medical records and his further physical examination and deposition. C.P.L.R. § 3124; 22 N.Y.C.R.R. § 202.21(e). If the court does not vacate the note of issue, defendant seeks to extend the time to move for summary judgment until 120 days after completion of the requested disclosure. C.P.L.R. §§ 2004, 3212(a).

Plaintiff's bill of particulars alleged primarily right shoulder injuries, but also cervical and lumbar pain and derangement, permanent and substantial restriction of motion due to all his injuries, and future medical treatment, including surgery, required by all his injuries. Consequently, when defendant deposed plaintiff, its attorney questioned plaintiff regarding his lumbar spine, including his pain and other symptoms in the lumbar spine and the physical therapy he was receiving for his lumbar spine. Likewise, when defendant's orthopedist

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examined plaintiff, the orthopedist fully examined plaintiff's lumbar spine and his range of motion in the lumbar spine and diagnosed a resolved lumbar spine strain.

Nevertheless, only upon filing and serving a note of issue did plaintiff serve a supplemental bill of particulars specifically alleging disc protrusion at the L5-S1 level with stenosis and an effect on the S1 nerve root, as well as permanent and significant restriction of motion in the lower back and future surgery on the lower back. Plaintiff also exchanged a report of a magnetic resonance imaging (MRI) of his lumbar spine, which was unavailable until after plaintiff's deposition, and authorizations for defendant to obtain the MRI films. This further diagnostic testing of plaintiff's lumbar spine amounts to the "unusual or unanticipated circumstances" that are required after the note of issue to permit further disclosure of evidence not previously requested. 22 N.Y.C.R.R. § 202.21(d). See Arons v. Jutkowitz, 9 N.Y.3d 393, 411 (2007); Cuevas v. 1738 Assoc., L.L.C., 111 A.D.3d 416, 416-17 (1st Dep't 2013); Bermel v. Dagostino, 50 A.D.3d 303, 304 (1st Dep't 2008).

Defendant acknowledges that, since its orthopedist already examined plaintiff's...